Citation Nr: 0923232
Decision Date: 06/19/09 Archive Date: 06/23/09
DOCKET NO. 08-07 427 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for residuals of a lumbar
spine injury
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Jon Schulman, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1967 until
January 1969. This matter comes before the Board of
Veterans' Appeals (BVA or Board) from a March 2007 rating
decision of the Department of Veterans Affairs (VA), Regional
Office (RO) in Waco, Texas.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.102, 3.156(a), 3.159 & 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Additionally, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate the claimant's claim, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The VCAA also requires that an
examination be provided where VA determines it is necessary
to decide the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2008); 38 C.F.R. § 3.159 (2008). In this vein, the
Court held in McLendon v. Nicholson, 20 Vet. App. 79 (2006),
that in disability compensation (service connection) claims,
the VA must provide a VA medical examination when there is
(1) competent evidence of a current disability or persistent
or recurrent symptoms of a disability, and (2) evidence
establishing that an event, injury, or disease occurred in
service or establishing certain diseases manifesting during
an applicable presumptive period for which the claimant
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another
service-connected disability, but (4) insufficient competent
medical evidence on file for the VA to make a decision on the
claim.
In the present case, the service medical records reveal that
in January 1968, the Veteran hurt his back while handling
ammunition. Subsequent in-service records do not reveal
complaints or treatment referable to the spine. At
separation in January 1969, the Veteran reported that he had
no recurrent back pain and a medical examination revealed
normal spine and musculoskeletal systems.
Following service, clinical records reflect that, in November
2006, the Veteran told a VA nurse that since injuring his
back in service, he has had chronic intermittent pain. A
January 2007 VA evaluation revealed a spondylolisthesis with
bilateral spondylolysis between the L5 and S1 levels as well
as a congenital anomaly similar to spina bifida of L5. It
was also noted that the Veteran had mild rotoscoliosis of the
lumbar spine and some disc joint narrowing at multiple
levels.
Considering that the service records show a back injury, and
in light of the Veteran's assertions that he has had chronic
back pain since that time, the evidence tends to indicate
that the current symptoms may be associated with the
Veteran's service. For this reason, the Veteran should be
afforded a VA examination to further determine the etiology
of a back disability. See McLendon v. Nicholson, 20 Vet. App.
79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA
examination to determine the nature and
etiology of any back disability. All
necessary tests should be conducted. If
current disability of the back is found,
the VA examiner should state whether it is
at least as likely as not that the back
complaints and treatment demonstrated in
service constitute early manifestations of
the current disability. For each
diagnosis, spondylolisthesis,
spondylolysis, spina bifida, scoliosis and
disc joint narrowing, the examiner must
determine whether there is any
relationship to the in-service
manifestations. In regard to
spondylolysis, scoliosis and spina bifida,
the examiner must determine whether such
are congenital or developmental defects
and whether there was any superimposed
pathology. All opinions should be
accompanied by a clear rationale
consistent with the evidence of record.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).